ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 5 September 2019 DOCKET NUMBER: AR20190007641 APPLICANT REQUESTS: An upgrade of his characterization of service from under other than honorable conditions to honorable or general. He also requests an opportunity to personally appear before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Honorable Discharge Certificates (x2) * DA Form 2A (Personnel Qualification Record) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he is making this request so that he may be eligible to receive Department of Veterans (VA) benefits, such as health insurance. He also states that he had honorable service ending on 22 March 1989 and 26 August 1992. 3. On 11 September 1986 the applicant enlisted on served honorably in the Regular Army for three years. On 4 September 1989 he reenlisted for a period of four years and on 27 August 1992 he reenlisted a second time for a period of 4 years. 4. On 27 October 1994, the applicant appeared in the District Court of Comanche County, State of Oklahoma and voluntarily pled guilty and was found guilty of lewd molestation. He was sentenced to serve 5 years in the in the custody of the Department of Corrections of the State of Oklahoma with 3 years to serve and 2 years suspended with supervision upon the condition that he did not violate any city, State, or Federal laws. Additionally, he was sentenced to pay various fees, fines and assessments; to attend sex offender’s treatment; and to continue the treatment upon release from the Department of Corrections. He was advised he had 10 days to appeal this judgement and with draw the plea of guilty. His record is void of indiscipline prior to his civil conviction. 5. On 4 January 1995, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 14, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) for misconduct, due to civil conviction, with an under other than honorable conditions discharge. He was advised of his rights. a. On 10 January 1995, the applicant acknowledged receipt of the commander's intent to separate him and waived counsel. On 26 January, he provided a statement indicating he was waving an administrative separation board contingent upon receiving a characterization of service of honorable [conditional waiver]. b. The applicant’s immediate commander recommended separation with an under other than honorable conditions discharge. His intermediate commanders concurred and recommended his request for a conditional waiver be disapproved. c. On 21 March 1995, the approval authority disapproved the applicant’s request for a conditional waiver and directed that an administrative separation board be convened to determine whether the applicant should be separated under the provisions AR 635-200, for misconduct, due to conviction by a civil court. 6. On 23 March 1995, the applicant was advised that an administrative separation board would meet to determine whether he should be separated under the provisions AR 635-200, for misconduct, due to conviction by a civil court. On 20 April 1995, the applicant waived consideration of his case by an administrative separation board. 7. On 8 May 1995, the separation authority approved the applicant’s discharge, under the provisions of chapter 14, AR 635-200 by reason of misconduct, due to conviction by civil court, with an under other than honorable conditions discharge. Accordingly, the applicant was discharged on 22 May 1995. 8. On 22 May 1995 he was discharged accordingly. The DD Form 214 he was issued confirms shows: * Net Active Service this Period: 8 years and 29 days * Remarks: "Immediate Reenlistments This Period ---19861109-19890322, 19890323-19920826, and 19920827-19950522" * Authorized Awards: Army Commendation Medal (2nd Award), Army Achievement Medal, Army Good Conduct Medal (2 Award), National Defense Service Medal, Noncommissioned Officer’s Professional Development Ribbon, with Numeral 2, Army Service Ribbon, Expert Marksmanship Qualification Badge with Rifle and Grenade Bar 9. On 13 September 2000, the Army Discharge Review Board denied his request for an upgrade of his discharge within that board’s 15-year statute of limitations. 10. The applicant provides two Honorable Discharge Certificates for RA honorable service for two periods of service the periods 9 November 1986 – 22 March 1989 and 23 March1989 – 26 August 1992. 11. The applicant contends he completed two honorable periods of service and he desires VA benefits, and requests a personal appearance. His record shows he completed honorable service from during his enlistment and first reenlistment periods. His civil conviction that resulted in him being discharged for misconduct occurred during his second reenlistment period. a. Army Regulation 635-200, Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories include convictions by civil authorities. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. b. In regards to the applicant's request for a personal appearance, Army Regulation 15-185, states an applicant is not entitled to a hearing before the Board; however, the Board or the Director of ABCMR may authorize a personal appearance. c. The applicant requests an upgrade so that he may receive benefits. The ABCMR is not authorized to grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits; however, in reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his periods of honorable service, the nature of his misconduct, the reason for his separation (civil conviction) and whether to apply clemency. The Board found no in-service mitigation for the serious misconduct and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. The Board determine, by a preponderance of evidence, that the character of service the applicant received at separation was not in error or unjust. The Board concurs with the corrections stated in the Administrative Note(s) below. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: With the exception of the corrections stated in the Administrative Note(s) that follow, the evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. . I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ADMINISTRATIVE NOTE(S): A review of the applicant’s record shows his DD Form 214 for the period ending 22 May 1995 is missing an important entry that may affect his eligibility for post-service benefits. As a result, amend item 18 (Remarks) of his DD Form 214 by adding the following entry “CONTINUOUS HONORABLE ACTIVE SERVICE FROM “19861109-19890322, and 19890323-19920826.” REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-5 (Personnel Separations – Separation Documents) states for Soldiers who have previously reenlisted without being issued a DD Form 214 and who are later separated with any characterization of service except “honorable,” enter “CONTINEOUS HONORABLE ACTIVE SERVICE FROM" and specify the appropriate dates. 3. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct - commission of a serious offense, and convictions by civil authorities. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. b. Paragraph 3-7a states an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. c. Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 4. Army Regulation15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR. In this case, the evidence of record is sufficient to render a fair and equitable decision 5. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. ABCMR Record of Proceedings (cont) AR20190007641 5 1